With Justice Samuel Alito writing for the majority in a 5-4 decision, the Supreme Court ruled in the case of Burwell v. Hobby Lobby Stores, Inc.. that certain corporations could opt out of providing certain contraceptives per the Affordable Care Act based upon religious grounds. At particular issue before the court was the fact that of the 20 forms of contraception that are approved by the Food and Drug Administration, four of them, including the so-called Plan B or "morning after pill," could essentially prevent an already fertilized egg from attaching to a woman's uterus.
The two primary litigants were Conestoga Woods Specialty and Hobby Lobby, both family-owned businesses that are designated as "closely held." At law, closely held corporations generally have few shareholders and rarely trade such shares publically despite the fact that as for the main litigants in this case, both employ in excess of 13,000 individuals combined.
Understanding this background, and cognizant that the Religious Freedom Restoration Act of 1993 prohibits "government from substantially burdening a person's exercise of religion even if the burden results from a rule of general applicability," Alito noted that "The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs." Alito also carefully noted that in rendering this decision, the court holds that employees for such closely held, religious-oriented companies still maintained the personal option of obtaining insurance coverage that includes "all FDA approved contraceptives."
Alito quite bluntly averred that "We do not hold, as the principal dissent alleges that for profit corporations and other commercial enterprises can 'opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs." Alito's words were aimed at Justice Ruth Bader Ginsburg, his liberal colleague who also suggested within her dissent that by rendering this decision, that the court had "ventured into a minefield" and that such would burden employees "who do not share their employer's religious beliefs."
It is worth noting that Ginsburg was joined in dissent by Justice Stephen Breyer, as well as Justices Sonia Sotomayor and Elena Kagan. That the court's three female jurists fell along the same ideological lines is not atypical, but within the dicta of this dissent, Ginsburg notes the Women's Health Amendment's passage amid concerns in Congress, best articulated by Sen. Dianne FeinsteinDianne FeinsteinJustice requires higher standard than Sessions Senate to vote Friday on Trump's defense picks Senate seeks deal on Trump nominees MORE (D-Calif.) that "women of childbearing age spend 68 percent more in out of pocket health care costs than men." Feinstein's arguments were part of a larger argument that preventative care would reduce unintended pregnancies.
While Ginsburg made note of Feinstein's policy concerns, her dissent also focused on areas in which Supreme Court precedent had held that government could proscribe certain acts that implicated religious rights. Ginsburg pointed to the case of Department of Human Resources of Oregon v. Smith, where the court held that an Oregon law prohibiting the ingestion of peyote, a drug essential to certain Native American religious beliefs, did not inure special religious protection for employees who were denied unemployment benefits for using the same.
In cases invoking aspects of the First Amendment's right to the free exercise of religion, any government action burdening such must be "compelling" and it must "constitute the least restrictive means" in achieving that end. In the Hobby Lobby decision, Alito, as did the majority, has held that requiring employers to pay for morning after pills fails this least restrictive means test. From a purely legal standpoint, I believe that the court reached the correct result.
But moving forward, while many progressives interpret Ginsburg's dissent as perspicacious concerns about business owners in the future choosing to discriminate against minorities or homosexuals based upon religious grounds, whether such will be deemed sophistry or salient undoubtedly will be litigated in the future if some corporate owner, citing religious grounds, chooses to deliberately discriminate against customers based upon race, gender or sexual orientation.
Hobbs is a trial lawyer and political columnist based in Tallahassee, Fla., who was nominated by the Tallahassee Democrat for a Pulitzer Prize in Commentary in 2011 and who won the Florida Bar Media Award in 2010. His columns also appear on his website, www.talkinggenerationnext.com and at Tallahassee.com. His Twitter handle is @RealChuckHobbs.